Planning Permission Quashed for failure to publish S106 Agreement

The requirement for local planning authorities to publish a S106 agreement in the planning register prior to granting planning permission is not something new.

It has been in the DMPO since 2015.

Article 40(3)(b) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 (DMPO) provides that a local planning authority’s planning register must contain, amongst other things, in relation to a planning application “a copy (which may be photographic or in electronic form) of any planning obligation or section 278 agreement proposed or entered into in connection with the application.”

However, pursuant to the ruling in Greenfields (IOW) Limited v Isle of Wight Council [2025] EWCA Civ 488, which concerned “the grant of planning permission for a development which included 473 new homes…”, failure to do this  can be the basis for the quashing of a planning permission where the proposed or completed S106 agreement has not been placed on the planning register before the planning permission was issued. In this case, the planning committee resolved that the grant of the planning permission was subject to prior completion of a section 106 agreement. However, neither the proposed nor the final agreement was placed on the planning register. Furthermore, the heads of terms in the committee report contained a financial contribution for an unspecified amount to be paid by the developer for cost of highway works necessary to improve two road junctions. The Developer was quoted to have assessed that the costs “be in the region of £777,000 (both junctions)”. The actual financial contribution under the S106 Agreement was £406,359.00. The council’s decision to grant planning permission was judicially reviewed by Greenfields.

Greenfields argued that the grant of planning permission was invalid because the local planning authority had failed to publish the S106 agreement prior to granting planning permission. The heads of terms in the committee reports were not sufficient in specifying the nature of the financial contribution, including the quantum. There was evidence showing that representations would have been made, by the claimant and others, had they known the actual contribution payable.

Article 40(3)(b) of the DMPO provides that a local planning authority’s planning register must contain, amongst other things, in relation to a planning application:

(a) a copy (which may be photographic or in electronic form) of the application together with any accompanying plans and drawings;

(b) a copy (which may be photographic or in electronic form) of any planning obligation or section 278 agreement proposed or entered into in connection with the application;

(c) a copy (which may be photographic or in electronic form) of any other planning obligation or section 278 agreement entered into in respect of the land the subject of the application which the applicant considers relevant; and

(d) particulars of any modification to any planning obligation or section 278 agreement included in Part 1 of the register in accordance with sub-paragraphs (b) and (c).

On the application for leave to challenge at first instance, HHJ Jarman KC refused permission on this ground. However, at appeal Lewis LJ held that failure to publish the S106 agreement prior to granting the planning permission rendered the decision unlawful. Lewis LJ noted that “there had been no substantial compliance(with the DMPO) as the terms of the section 106 agreement were never publicised and the amount of the contribution that the developer would make to highways improvements was not known until after the grant of planning permission.” The court thus held that “failure by the Council to place a copy of the proposed, or finalised, section 106 agreement on the planning register prior to granting permission did result in the unlawfulness of the decision of 4 August 2023 issuing the planning permission.”

The purpose of the publication requirement in Article 40(3)(b) DMPO is so the public is aware of the terms of the planning obligation and to have the opportunity to make comments. It is clear that compliance with Article 40(3)(b) requires local planning authorities to publish the S106, before the planning permission is granted.

Importantly, although the heads of terms were published in the planning officer’s report, Lewis LJ rejected the argument that the requirement was complied with as a result because the quantum of the highways contribution was not disclosed.

He was satisfied that there was a genuine dispute regarding the quantum of the highway contribution secured and that Greenfields were denied the opportunity to make representations on this issue prior to planning permission being granted.

In light of Greenfields, what should local planning authorities do?

(a) Officer’s reports should contain detailed heads of terms for any planning obligation.

(b) Councils must ensure they publish S106 agreements, unilateral undertakings, and S278 agreements prior to granting planning permission.

(c) If a unilateral undertaking or draft agreement is submitted with an application, it should be published on the register with the other application documents.

(d) If a S106 agreement is negotiated and completed after a committee has resolved to grant planning permission, the completed agreement must be published once it has been agreed but before planning permission is granted.  The DMPO does not specify a minimum time period for publication before planning permission can be granted. However, publication immediately prior to grant would seem to defeat the intention of the requirement, as it would practically deny the public an opportunity to comment before permission is granted. It would be best to allow at least a few days for the public to comment, before planning permission is granted. The best point to publish may be when the final draft is agreed. There is usually a delay of at least a few days or a week or two, while engrossments are prepared, circulated for signature, sealed, and completed. This would afford the public a reasonable opportunity to comment, without significantly delaying the grant of planning permission.

(e) The DMPO does not require publication of early, or multiple, drafts of a S106 agreement or S278 agreement. It would be reasonable, and indeed desirable, to wait until the agreement or undertaking is substantially agreed before publishing it on the register. Following publication, officers will need to consider any comments receive in light of the local development plan, national and local planning policies, committee’s deliberations on the application, and the terms of the committee’s delegation to officers. In most cases, it will be appropriate to simply proceed to grant planning permission. If, however, comments are received that call into question the validity or appropriateness of the S106 agreement or S278 agreement that has been agreed, then officers may need to consider whether the matter needs to be returned to committee.

Conclusion

None of this is new. It has been in the DMPO since 2015 and alluded to in our seminars. However, it has now been judicially considered, and it would be unwise not to have a procedure in place to ensure that planning obligations are placed on the register prior to committee and then also prior to granting planning permission.